When someone is injured or worse because of medical malpractice, that person has the right to file a lawsuit against the offending party or parties. That is basically a universal rule, as is the rule that these actions must be filed within the statute of limitations. The vast majority of jurisdictions around the United States do not ‘start the clock’ on the statute of limitations until the patient either knew or should have known about the harm that was done.
That legal notion makes sense, as most people are not going to be aware of a problem that persists because of a missed or an incorrect diagnosis on the day that it happens. They will likely not realize something is wrong unless their condition does not improve or it gets worse. As of now, only six jurisdictions start that clock on the statute of limitations on the day that the medical mistake was made, and New York is one of them. This rule has led to many otherwise valid lawsuits being dismissed or never filed. That could all be changing soon in New York.
The state legislature is considering a bill that is known as Lavern’s Law, which is named after a woman who sought medical treatment in 2010 for a problem with her chest. The doctors treating her allegedly missed a mass in her lung that eventually developed into lung cancer. She died a few months ago, and many experts who have looked at the case believe that if that diagnosis had not been missed three years ago that her life would have been saved.
If the bill becomes law, New York would then fall in line with the other jurisdictions around the country in that patients would not face the start of the statute of limitations until they either know or should know that something is wrong and that they may have been the victims of medical malpractice. Experts are divided on whether or not the bill will pass, as insurance companies and medical associations are generally in favor of leaving the law as it currently stands.
As one could imagine, attorneys and advocates for patients are in favor of changing the law to provide patients with a better opportunity to hold those responsible for harm done by negligence accountable. That seems to be the essence of this issue – medical care is serious business, and when doctors and/or medical facilities make mistakes they can lead to a tremendous amount of suffering and in some cases even to death. When patients do not realize that they have been wronged until years after the fact, they may lose out on the chance to protect their legal rights.
It will be interesting to see how this debate ends and whether this bill becomes law. In the meantime, anyone who suspects that doctors have made a mistake should not hesitate to seek a second opinion. If you or someone you love has been harmed as a result of this type of negligence, contact the New York medical malpractice lawyers at The Fitzgerald Law Firm today to schedule a free initial consultation.